Citation Nr: 0000243
Decision Date: 01/05/00 Archive Date: 01/11/00
DOCKET NO. 99-09 692 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to a nonservice-connected pension.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Board
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran had active military service from September 1967
to September 1969.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from a February 1999 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO), in Jackson, Mississippi.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
agency of original jurisdiction.
2. In December 1998, the veteran was involved in an
automobile accident that was the result of alcohol
intoxication.
3. As a result of that accident, the veteran now suffers for
the residuals of a closed head injury with persistent
comatose-like manifestations and symptoms.
CONCLUSION OF LAW
Because the veteran's nonservice-connected disabilities are
the result of his own misconduct, the claim for entitlement
to nonservice-connected pension benefits lacks legal merit,
and it is denied. 38 U.S.C.A. §§ 1110, 1155, 1502, 5107
(West 1991 & Supp. 1999); 38 C.F.R. §§ 3.301, 3.342 (1999);
Sabonis v. Brown, 6 Vet. App. 426 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant, the veteran's wife, acting on behalf of the
veteran as his fiduciary in accordance with 38 C.F.R. § 1.524
(1999), has filed for a nonservice-connected pension. She
claims that because the veteran is now in a vegetative coma-
like state, he cannot be gainfully employed, and should
receive VA pension benefits.
A review of the scant medical records in the claims folder
reveals that the veteran was involved in a motor vehicle
accident on December 12, 1998. He ran his car off the road
and struck a tree. Upon discovering the unconscious veteran,
he was taken to the local hospital where he was treated.
While being initially treated, it was determined that he had
a blood alcohol content of 300 mg/dL. [Legal intoxication in
the state of Mississippi has been ruled to be 100 mg/dL or
greater. Thus, subsequent to the accident, the veteran was
found to have three times the legal limit of alcohol in his
blood that would be considered intoxication.] After
receiving intensive care, he improved and has been able to
move around on his own. He does, however, have impaired
neurological functions.
A nonservice-connected pension is payable to a veteran who
served for 90 days or more during a period of war and who is
permanently and totally disabled due to nonservice-connected
disabilities not the result of his own willful misconduct.
38 U.S.C.A. § 1521 (West 1991 & Supp. 1999). If his
disability is less than 100 percent, he must be unemployable
by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342,
and Part 4 (1999).
Willful misconduct means an act involving conscious
wrongdoing or known prohibited action. It involves
deliberate or intentional wrongdoing with knowledge of or
wanton and reckless disregard of its probable consequences.
Mere technical violation of police regulations or ordinances
will not per se constitute willful misconduct. Willful
misconduct will not be determinative unless it is the
proximate cause of injury. 38 C.F.R. § 3(n) (1999).
The simple drinking of alcoholic beverage is not of itself
willful misconduct. If, however, in the drinking of a
beverage to enjoy its intoxicating effects, intoxication
results proximately and immediately in a disability, the
disability will be considered the result of the person's
willful misconduct. 38 C.F.R. § 3.301(c)(2) (1999).
In this instance, the evidence indicates that the veteran's
current physical condition is due to his drinking of alcohol
well past the point of legal intoxication. Then the veteran
placed himself behind the wheel of an automobile and
subsequently ran off the road and crashed into a tree. Thus,
the current disabilities that prevent the veteran from
gainful employment are the direct or proximate result of the
his use of alcohol for the purpose of enjoying intoxication
and the effects of those substances. Those disabilities are
the result of his own willful misconduct, as specified in 38
C.F.R. § 3.301 (1999).
In Sabonis v. Brown, 6 Vet. App. 426 (1994), the United
States Court of Veterans Appeals, now known as the United
States Court of Appeals for Veterans Claims, and hereinafter
the Court, reiterated its position previously reported in
King v. Brown, 5 Vet. App. 19, 21 (1993) and Tirpak v.
Derwinski, 2 Vet. App. 609, 610-11 (1992). That is, per 38
U.S.C.A. § 5107(a) (West 1991), the appellant has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well-
grounded. The Sabonis decision further dictated that when
there is a lack of entitlement under the law or an absence of
legal merit, the claim should be dismissed. Moreover, the
action of Board should be terminated immediately concerning
that issue. See also Giancaterino v. Brown, 7 Vet. App. 555,
561 (1995) (construing Sabonis, supra), and Florentino v.
Brown, 7 Vet. App. 369 (1995).
In this case, the applicable regulations specify that
entitlement to nonservice-connected disability pension cannot
be granted for disabilities which are the result of the
veteran's own willful misconduct. See 38 C.F.R. § 3.342
(1999). Having found that the disabilities that prevent the
veteran from gainful employment are the result of his own
willful misconduct, the veteran lacks entitlement under the
law to pension benefits for nonservice-connected
disabilities. Accordingly, this claim is denied.
ORDER
Entitlement to a nonservice-connected pension is denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The veteran does have one service-connected disability - that of an appendectomy scar noncompensably
rated.